February 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GUSTAVO ALTAMIRANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-085, Indictment No. 05-05-00185.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 13, 2009
Before Judges Gilroy and Chambers.
After pleading guilty to his third offense for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, at sentencing, defendant was allowed to serve a portion of his jail time in the Sheriff's Labor Assistance Program (SLAP). A subsequent Appellate Division decision held that the mandatory jail time imposed by the statute for a DWI offense, N.J.S.A. 39:4-50(a)(3), could not be served in a SLAP program. State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006). As a result, defendant's SLAP sentence was vacated, requiring him to serve time in jail. Since defendant had already begun serving his time in SLAP, he contends that this change in his sentence constitutes an ex post facto application of the law, and that it violates principles of double jeopardy, due process, and fundamental fairness. We disagree. Because the original sentence was an illegal sentence, it may be corrected at any time. However, since the service in SLAP was pursuant to a "plea agreement",*fn1 we stay the sentence for forty-five days in order that defendant may move to vacate the plea.
On February 2, 2006, defendant pled guilty in Chester Township Municipal Court to the DWI charge. As part of a plea agreement, the related traffic complaints of reckless driving, failure to keep right, and failure to dim headlights were dismissed. This was defendant's third DWI offense. The Municipal Court judge suspended defendant's driving privileges for ten years, ordered him to serve at least forty-eight hours in the Intoxicated Driver Resource Center, and sentenced him to six months in jail. The judge stated that defendant would be allowed to serve ninety days of his jail time in SLAP and the balance in a rehabilitation program. The judge fined defendant $1,000 and assessed the requisite monetary costs, penalties, and assessments.
A month later, on March 6, 2006, we held that under the terms of the statute, N.J.S.A. 39:4-50(a)(3), third time DWI offenders could not participate in non-custodial programs as an alternative to jail time, but must serve their time in jail, except that they could serve up to ninety days in an inpatient rehabilitation program as expressly permitted by the statute. State v. Luthe, supra, 383 N.J. Super. at 514-15.
On May 12, 2006, in response to the Luthe decision, the Sheriff's Office determined that defendant could not serve his sentence in SLAP. By this time, defendant had already served ten days in SLAP. The matter came before the Municipal Court judge on July 6, 2006, and the judge, expressing some concern over the ex post facto issue, initially reaffirmed his placement of defendant into SLAP. However, upon reconsideration, the judge thereafter revoked the SLAP sentence and required that defendant serve ninety days in jail upon completion of his rehabilitation program. He stayed the sentence, pending appeal.
The Law Division judge, in his de novo review of the record in accordance with Rule 3:23-8(a), State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995), determined that defendant had been given an illegal sentence, which may be corrected at any time. However, in light of the fact that the sentence was part of a plea agreement, the judge determined that defendant may withdraw his plea, and if reconvicted after a trial, would be given credit for the ten days served in SLAP. The judge explained his decision as follows:
Now, defendant makes . . . an argument concerning ex post facto, double jeopardy and due process. Generally, any statute which makes a prior act that was innocent when committed a crime, which makes punishment for a crime more burdensome after its commission, or which deprives a defendant of a defense available when the act was committed, constitutes an ex post facto law. State v. T.P.M., 189 N.J. Super. 360 at 366 (App. Div. 1983).
Additionally, a defendant may not be resentenced where the defendant has accepted a plea offer, been sentenced in accordance therewith, and has begun to serve that sentence. State v. Veney, 327 N.J. Super. 458 at 462 (App. Div. 2000).
On the other hand, a sentence is illegal if it is inconsistent with the requirements of the controlling . . . sentencing statute or constitutional principles. [Ibid. citing] State v. Flores, 228 N.J. Super. 586 at pages 591 and 592, (App. Div. 1988) [certif. denied, 115 N.J. 78 (1989)]. New Jersey courts have consistently held that the illegal sentences may be corrected at any time. [Ibid.;] State v. Heisler, 192 N.J. Super. 586 at 592 (App. Div. 1984), (citing also, State v. Sheppard, 125 N.J. Super. 332 (App. Div. 1973), [certif. denied, 64 N.J. 318 (1973)]).
Here, N.J.S.A. 39:4-50(a)(3) was amended in 2004 to require a custodial sentence . . . in a "county jail or a work house" for  third time DWI offenders, almost two years prior to the date of the defendant's offense in October of 2005. Therefore, defendant's original SLAP sentence was illegal because it was inconsistent with the statutory requirement.
Accordingly, the court finds that the defendant's ex post facto and double jeopardy arguments do not apply, because the original sentence of the defendant constituted an illegal sentence, which may be corrected at any time. And I would point out that the statute against which he was sentenced was already in place as amended. So, it's not a situation where the punishment was enhanced . . . . That was the punishment to begin with. . . . He never had the option of SLAP to begin with. The court has spoken on that.
And that -- and that's unfortunate because he entered a plea agreement. He had . . . a plea bargain, and he should have gotten what he bargained for, but he didn't, and the court below did the only thing it could do, which was resentence in accordance with the law.
Due process was to give him what he was entitled to under law. The fact that they bargained for something he wasn't entitled to and agreed to it, doesn't change the illegality of the sentence nor the reality of the situation. What Judge Mulhern did was to put him back to where he -- he could only be.
Now, the problem with this, as I see, and why I think there is some relief required here, is the parties bargained and made a mistake of fact and a mistake of law, and he should be put back in the position -- and I'm going to find that he entered an agreement when he thought he could get SLAP, and he could get rehabilitation for a period -- 90 days SLAP and 90 days rehab. Certainly, [he] never bargained and agreed to 180 days, which is now what he has.
I'm wondering if we can do this? If Prosecutor -- you can prepare the -- the Order. The Order will provide that it's an illegal sentence. I've determined as a matter of law, it was an illegal sentence. No ex post facto applies. No estoppel applies. However, because it was an illegal sentence, I'm . . . in effect saying he can take his plea back. I'm rejecting his plea. He can take it back, and he starts all over again. He'll get credit if he's ultimately convicted for any time he's served, obviously. He should not be deprived of that. Even though it was an illegal sentence, there's no question he did 10 days of SLAP. So, he should get credit for that.
On appeal, defendant contends that the retraction of the SLAP sentence constitutes an ex post facto application of the law and that a new trial on the charge would constitute double jeopardy. He maintains that due process and fundamental fairness require that the SLAP sentence be reinstated.
After a careful consideration of the law and issues raised in this appeal, we affirm substantially for the reasons set forth by the Law Division judge. We add only the following comments.
Application of the holding in State v. Luthe, supra, 383 N.J. Super. 512, to defendant's sentence does not amount to an ex post facto law, because at the time defendant committed the offense the statute provided for the term of imprisonment he has received.
Both the New Jersey and federal constitutions forbid ex post facto laws. U.S. Const. art. I, § 9, cl. 3; U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. For a penal law to be considered ex post facto, it must be retrospective and it must disadvantage the offender. State v. Natale, 184 N.J. 458, 491 (2005). A law is considered retrospective if it "changes the legal consequences of acts completed before its effective date." State v. Fortin, 400 N.J. Super. 434, 445 (App. Div. 2008) (quoting Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed. 2d, 351, 360 (1987)). A law disadvantages the offender where it is "more onerous than the prior law." Id. at 446 (quoting Miller v. Florida, supra, 482 U.S. at 431, 107 S.Ct. at 2452, 96 L.Ed. 2d at 361).
A judicial decision may be considered an ex post facto law where its enlargement of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Id. at 490-91 (quoting Rogers v. Tennessee, 532 U.S. 451, 455, 121 S.Ct. 1693, 1697, 149 L.Ed. 2d 697, 704 (2001)). Given the language in the statute providing for a period of incarceration, the holding in Luthe is not "unexpected or indefensible." We note that the defendant in Luthe did not raise an ex post facto argument.
Further, a judicial decision that does not increase the range of the defendant's sentence or retroactively apply a new statutory maximum does not disadvantage the defendant. See State v. Natale, supra, 184 N.J. at 489-92 (concluding that eliminating presumptive terms in the statutory sentencing scheme and allowing sentences up to the statutory maximum did not violate the prohibition against ex post facto laws). Here, when defendant committed the offense, indisputably, the statutory penalty was 180 days in jail. Since Luthe did not increase the maximum sentence that defendant could receive for the offense, it did not disadvantage him and the ex post facto prohibition has not been violated.
We further add that the correction of an illegal sentence does not implicate double jeopardy principles even if a defendant has already begun to serve the sentence. State v. Baker, 270 N.J. Super. 55, 72 (App. Div.), aff'd 138 N.J. 89 (1994), cert. denied, 528 U.S. 911, 120 S.Ct. 261, 145 L.Ed. 2d 219 (1999).
The order on appeal dated January 4, 2008, merely states that "[t]he decision of the municipal court to vacate the SLAP sentence is affirmed for the reasons stated on the record." It then stayed the matter twenty days pending appeal. The order does not expressly set forth the alternative of vacating the plea as directed by the judge. Accordingly, while we affirm the vacation of the SLAP sentence, we stay the sentence for a period of forty-five days to provide defendant time to move in the Law Division to vacate the plea.